[Introduced February 13, 2013; referred to the Committee on the
Judiciary.]

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A BILL to amend and reenact §48-6-301 of the Code of West Virginia,
1931, as amended, relating to prohibiting the use or
consideration of an income-producing asset for spousal support
if the asset was the subject of equitable distribution.Be it enacted by the Legislature of West Virginia:
That §48-6-301 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:ARTICLE 6. PROPERTY SETTLEMENT OR SEPARATION AGREEMENTS.§48-6-301. Factors considered in awarding spousal support, child
support or separate maintenance. (a) In cases where the parties to an action commenced under
the provisions of this article have not executed a separation
agreement, or have executed an agreement which is incomplete or insufficient to resolve the outstanding issues between the parties,
or where the court finds the separation agreement of the parties
not to be fair and reasonable or clear and unambiguous, the court
shall proceed to resolve the issues outstanding between the
parties.
(b) The court shall consider the following factors in
determining the amount of spousal support, child support or
separate maintenance, if any, to be ordered under the provisions of
parts five and six, article five of this chapter, as a supplement
to or in lieu of the separation agreement:
(1) The length of time the parties were married;
(2) The period of time during the marriage when the parties
actually lived together as husband and wife;
(3) The present employment income and other recurring earnings
of each party from any source except that income or earnings
derived from an asset that was the subject of equitable
distribution may not be considered;
(4) The income-earning abilities of each of the parties based
upon such factors as educational background, training, employment
skills, work experience, length of absence from the job market and
custodial responsibilities for children;
(5) The distribution of marital property to be made under the
terms of a separation agreement or by the court under the provisions of article seven of this chapter insofar as the
distribution affects or will affect the earnings of the parties and
their ability to pay or their need to receive spousal support,
child support or separate maintenance. Provided, That For the
purposes of determining a spouse's ability to pay spousal support,
the court may not consider the income generated by property
allocated to the payor spouse in connection with the division of
marital property; unless the court makes specific findings that a
failure to consider income from the allocated property would result
in substantial inequity;
(6) The ages and the physical, mental and emotional condition
of each party;
(7) The educational qualifications of each party;
(8) Whether either party has foregone or postponed economic,
education or employment opportunities during the course of the
marriage;
(9) The standard of living established during the marriage;
(10) The likelihood that the party seeking spousal support,
child support or separate maintenance can substantially increase
his or her income-earning abilities within a reasonable time by
acquiring additional education or training;
(11) Any financial or other contribution made by either party
to the education, training, vocational skills, career or earning capacity of the other party;
(12) The anticipated expense of obtaining the education and
training described in subdivision (10) above;
(13) The costs of educating minor children;
(14) The costs of providing health care for each of the
parties and their minor children;
(15) The tax consequences to each party;
(16) The extent to which it would be inappropriate for a
party, because saidthe party will be the custodian of a minor
child or children, to seek employment outside the home;
(17) The financial need of each party;
(18) The legal obligations of each party to support himself or
herself and to support any other person;
(19) Costs and care associated with a minor or adult child's
physical or mental disabilities; and
(20) Such other factors as the court deems necessary or
appropriate to consider in order to arrive at a fair and equitable
grant of spousal support, child support or separate maintenance.(c) A court may not consider the use or consideration of an
income-producing asset for purposes of spousal support if the asset
was the subject of equitable distribution pursuant to article seven
of this chapter.

NOTE: The purpose of this bill is to prohibit courts from
using or considering an income-producing asset for purposes of
spousal support if the asset was the subject of equitable
distribution.

Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.